Hanna v St Vincent's Hospital
[2015] VSC 281
•17 June 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2013 06532
| JOHN HANNA | Plaintiff |
| v | |
| ST VINCENT'S HOSPITAL (MELBOURNE) LIMITED | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 June 2015 |
DATE OF JUDGMENT: | 17 June 2015 |
CASE MAY BE CITED AS: | Hanna v St Vincent's Hospital |
MEDIUM NEUTRAL CITATION: | [2015] VSC 281 |
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PRACTICE AND PROCEDURE – Discovery – Sufficiency of discovery - Medical report – Certificate of assessment – Wrongs Act 1958 (Vic) ss 28LN, 28LT – Supreme Court (General Civil Procedure) Rules r 33 – Civil Procedure Act 2010 (Vic) s 26
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Mukherjee | Slater & Gordon Ltd |
| For the Defendant | Mr M J Hooper | Minter Ellison |
HER HONOUR:
Introduction and summary
The plaintiff issued proceedings against the defendant by writ on 17 December 2013 He seeks damages in respect of his claims for medical negligence and breach of agreement. The defendant admits that on or around 22 January 2011 the plaintiff underwent an above knee amputation due to ischemia and sepsis secondary to DVT. The defendant disputes liability.
By summons dated 15 May 2015, the defendant seeks orders pursuant to r 33.08.01 of the Supreme Court (General Civil Procedure) Rules (‘the Rules’). In particular, the defendant seeks an order for the plaintiff to serve upon it a copy of the report of Dr Clayton Thomas, prepared in respect of Dr Thomas’ examination of the plaintiff on 14 April 2014 (‘the Medical Report’). The summons was supported by an affidavit from Ms Jennifer Cowen sworn on 2 June 2015. Ms Cowen is a lawyer employed by the defendant’s solicitors. In its written submissions, and at the hearing of this application on 5 June 2015, the defendant also sought a copy of the Medical Report on the ground that the report is discoverable and not subject to privilege.
The plaintiff opposed the application. Mr Nicholas Mann affirmed an affidavit on 2 June 2015 setting out the history of correspondence between the parties on the issue and grounds for opposing the application. Mr Mann is a solicitor employed by the plaintiff’s solicitors. At the hearing on 5 June 2015, the plaintiff’s counsel provided oral and written submissions in opposition to the application.
For the reasons appearing in this judgment, I have decided to dismiss the defendant’s application.
Rule 33
Rule 33 deals with discovery where a plaintiff makes claims for bodily injury. It specifically deals with medical examination of a plaintiff and the service of hospital and medical reports.
Rule 33.03 defines a ‘medical report’ to be:
(a) a statement on medical matters concerning the plaintiff whether in writing or oral made by a medical expert; and
(b) includes any document which the medical expert intends should be read with the statement whether the document was in existence at the time the statement was made or was a document which the expert obtained or caused to be brought into existence subsequently.
Rule 33.04 provides a mechanism for the defendant to request a plaintiff submit to appropriate examinations by a medical expert or experts at specific times and places and, where a plaintiff refuses or neglects to do so without reasonable cause, the Supreme Court may stay the proceeding.
Rule 33.06 provides that where a plaintiff has been examined for a defendant under r 33.04, the defendant shall, as soon as practicable after the examination, obtain a medical report from the medical expert and serve it forthwith on the plaintiff. It also provides that if a defendant later obtains another medical report from the same medical expert, it shall serve it forthwith on the plaintiff.
Rule 33.07(1) provides:
A plaintiff shall serve on each other party who has an address for service in the proceeding any hospital or medical report (other than a hospital or medical report served on or supplied to the plaintiff by another party) –
(a) which the plaintiff intends to tender or the substance of which the plaintiff intends to adduce in evidence; or
(b) which otherwise the plaintiff intends to use at the trial.
Rule 33.07(2) requires the plaintiff to serve the hospital or medical report within seven days after notice of trial under o 48 is filed and served and, in the case of a hospital report or medical report made to or obtained for the plaintiff after that time, forthwith or at such other time as the Court directs.
Rule 33.08.1 provides:
Where after a party has served a medical report under r 33.07 or 33.08 the medical expert who made the report makes another medical report to the party, then, notwithstanding that the party –
(a) no longer intends to tender the medical report so served or to adduce its substance in evidence or otherwise use it at the trial; or
(b) does not intend to tender the other medical report or adduce its substance in evidence or to otherwise use it at the trial –
the party shall serve the other medical report forthwith on each other party who has an address for service in the proceeding.
Rule 33.09(2) provides that unless a court otherwise orders, a party who is required to serve a copy of a hospital report or medical report under o 33 may exclude from the copy served (a) any expression of opinion in the original report on the question of liability; and (b) if the original report contains any statement with respect to the facts on which the opinion is based, any statement with respect to a fact that relates only to the question of liability.
Rule 33.11 deals with the admissibility of medical reports.
Rule 33.12 stipulates that, save with the leave of the Supreme Court or by consent of the parties, a party shall not, except in cross-examination, adduce evidence from a medical expert on medical matters concerning a plaintiff unless that evidence is disclosed by a medical report served in accordance with o 33.
It is evident that r 33 enables parties to have the relevant information to prove or refute a claim for bodily injury. The defendant submits that r 33 applies to a Certificate of Assessment made pursuant to s 28LN of the Wrongs Act 1958 (Vic) (‘the Act’) dated 11 April 2014 and signed by Dr Thomas (‘the Certificate’). The defendant submitted that because the plaintiff had served the Certificate, it was obliged by r 33.08 to serve the Medical Report.
At the hearing, the defendant conceded that r 33.08 was not technically applicable because the medical report was probably already in existence at the time the certificate was made.
The defendant submitted that the Certificate was a ‘medical report’ within the meaning of r 33.03 and that the Medical Report should be considered as part of the Certificate because it fell within r 33.03(b), and therefore it should be served pursuant to r 33.07. That is, that, considered objectively, Dr Thomas would have intended the Medical Report to be read with the Certificate and, as the plaintiff had served the Certificate and has relied upon it, and would at trial, the Medical Report must also be served.
In order to consider whether r 33 applies to the Certificate, as the defendant contends, it is necessary to consider the legislative scheme pursuant to which the Certificate was made. The legislative scheme is contained in Part VBA of the Wrongs Act. This scheme requires plaintiffs who are covered by it (‘applicable plaintiffs’), such as the plaintiff in this proceeding, to comply with it if they wish to make a claim for non-economic loss. In order for such a claim, applicable plaintiffs must provide they have suffered a ‘significant injury’ within the meaning of s28LF of the Wrongs Act. Save for certain types of injuries or certain deemed injuries, unless a Medical Panel has made a determination or there has been an agreement to waive the requirement for an assessment, an applicable plaintiff must obtain a certificate of assessment that the degree of impairment resulting from the injury meets the ‘threshold level’ (defined in s 28LB). This assessment must be made by an approved medical practitioner (s 28LG) and the assessment must be done in the prescribed way (s 28LH). The substance of the certificate of assessment is prescribed by s 28LN(2) and by regulation.
Under s 28LT, a claimant must serve a copy of a certificate of assessment which must be accompanied by prescribed information on the prescribed form (unless that information has already been provided under s 28LO).
It is common ground between the parties that:
(a) the Certificate (as amended) was served pursuant to the requirements in the Wrongs Act;
(b) the defendant agreed that it was the proper respondent to the Certificate and accepted assessment for the purposes of the Wrongs Act;
(c) the defendant did not have to accept these matters, but could have referred the matter to a Medical Panel, sought further information, or give information explaining why it rejected the certificate.
Given that service of the Certificate was not pursuant to o 33, but rather pursuant to the Wrongs Act, it follows that it was not service under r 33.07 or r 33.08. Rule 33.08.01 applies “after a party has served a medical report under r 33.07 or r 33.08”. Given that the Certificate was not served under r 33.07 or r 33.08, it follows that neither r 37 nor r 33.08.1 is applicable. Accordingly, the plaintiff is not required by those Rules to serve the Medical Report.
Discovery
In paragraph 22 of its written submissions, the defendant states:
The accompanying report of Dr Thomas is reasonably necessary to enable proper understanding of the certificate – how did Dr Thomas arrive at the conclusion of more than 5% impairment, what injuries did he take into account and what part of the AMA Guide did he use?
Under s 28LN(2) of the Wrongs Act, a Certificate of Assessment cannot state the specific degree of impairment. Consistently with that, the Certificate does not state the specific degree of impairment. The defendant accepted the Certificate. The injuries of the plaintiff are common ground between the parties as the Defendant admits them in paragraph 19 of its amended defence filed on 12 March 2015.
Section 11(a) of the Civil Procedure Act 2010 (Vic) provides that the overarching obligations apply to any interlocutory application or proceeding. Section 12 provides that those overarching obligations prevail. Section 26 sets out the overarching discovery obligation. It directs parties to discover documents ‘critical to the resolution of the dispute’. This is a dispute about liability and, if the defendant is found to be liable, the quantum of damages. Given that there is no controversy regarding the Certificate, and the injuries are admitted, it follows that the Medical Report is not critical to the resolution of the dispute.
Given that the Medical Report is not required to be discovered, it is unnecessary for me to consider whether or not ss 122 or 126 of the Evidence Act apply.
Order
The defendant’s application by way of summons is dismissed. I will hear the parties in relation to costs.
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